Hayden Wilson v CTB Management Solutions CCOG Pty Ltd Trading as Benno Civil and Plumbing
[2025] FWC 3054
•10 OCTOBER 2025
| [2025] FWC 3054 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 365—General protections
Hayden Wilson
v
CTB Management Solutions CCOG Pty Ltd Trading AS Benno Civil and Plumbing
(C2025/7833)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 10 OCTOBER 2025 |
General protections – s 386(1)(a) – special circumstances - Minato v Palmer Corporation Ltd
The dispute and outcome
On 11 August 2025, Mr Hayden Wilson (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced employment with Management Solutions CCOG Pty Ltd trading as Benno Civil and Plumbing (the Respondent) on or around 23 June 2025, as an Excavator Operator, and asserts that on 24 July 2025, he was forced to resign from his employment.
The Respondent has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 of the Act but voluntarily resigned.
The Respondent’s objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 of the Act relevantly provides:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act.[2] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from his employment within the meaning of s 386(1)(a) or/and (b) of the Act.
Given the factual dispute over whether the Applicant was or was not dismissed, the matter proceeded to hearing on 2 October 2025. Having considered the evidence of the parties and their submissions, I have found that the Applicant’s employment was terminated at the initiative of the Respondent (s 386(1)(a) of the Act). It follows that the Respondent’s jurisdictional objection is dismissed, and therefore, the matter will be listed for a conciliation conference.
My detailed reasons follow.
Background
In respect of the broader context leading to the cessation of the Applicant’s employment, evidence was received from the Applicant and the Applicant’s wife Kirsten Wilson (Wilson).
Mr Peter Bennett (P Bennett), a Director of the Respondent, and Mr Craig Bennett (C Bennett), Managing Director of the Respondent, gave evidence on behalf of the Respondent.
An abridged version of the parties’ evidence is set out below. Whilst attention was drawn to P Bennett purporting to be a director of the Respondent but not being named as one on an ASIC company extract, I am of the view that the point has little to no bearing on the issue to be determined.
It is uncontroversial that the Applicant was employed in a full-time capacity for the Respondent on the Jindalee Wormall Civil subdivision. The Respondent had a common trench contract with Wormall Civil for power. Whilst there are references to ‘girls’ in the background to this matter, I consider it safe to presume that they were ‘women’ who were working on the Wormall site.
2.1 Applicant
Having commenced employment toward the end of June 2025, the Applicant’s first week at the Wormall site was uneventful. On the afternoon of 1 July 2025, the Applicant started to feel ill and asked if he could go home early. The Applicant was subsequently absent from work on 2 July 2025 and 3 July 2025, and whilst the Applicant presented for work on 4 July 2025, by Sunday, 6 July 2025, he was hospitalised with Influenza A. The Applicant ultimately returned to work on 10 July 2025, noting that he kept a physical distance from others as he felt he was still not fully recovered.
On 18 July 2025, the Applicant arrived at work and was approached by P Bennett in the workplace carpark. The Applicant stated that P Bennet informed him that he had received a phone call from Shane Wormall, Managing Director of Wormall Civil, that the Applicant was not to be on site as unidentified women at the Wormall Civil site had alleged that the Applicant made them feel uncomfortable.
At 8:45AM on that same day – 18 July 2025, the Applicant received a phone call from P Bennett who noted that the matter would be subject to an investigation and that the Applicant would be stood down from duties on pay pending the outcome of the investigation. The Applicant was informed that Wormall Civil’s HR department would not conduct the investigation but that the Respondent would internally manage the matter.
The Applicant noted that Wilson, having been advised by him what had occurred, rang the office of the Respondent noting that she could not get hold of the Applicant and was worried. The Applicant said that Wilson received two calls from C Bennett and so returned those calls. The Applicant stated that Wilson informed him the C Bennett advised her, amongst other matters, that it may not have been the girls that made the accusation.
The Applicant stated that on 20 July 2025 he received a text message from the Respondent setting out that the Respondent was unable to place the Applicant on other projects as one did not start for ‘4/4’ and, at another project, the Respondent had placed another operator.
On 22 July 2025, the Applicant had a telephone discussion with P Bennett, in which the Applicant reports that Bennett offered an apology and informed the Applicant that the investigation had been completed. According to the Applicant, P Bennett advised him:
…that Benno Civil & Plumbing management were required to follow company policies and procedures to the letter, and that this process had ultimately worked in favour of both Benno Civil & Plumbing Pty Ltd and myself.
…all the girls on site had been spoken to and that he would be visiting the site tomorrow to hold a meeting with them…
…there was work available for [the Applicant] tomorrow on Wednesday the 23 July 2025 on the same worksite.
The Applicant stated that he informed P Bennett that he would need time to think about it, given everything that had happened. According to the Applicant, P Bennett was said to have said that he understood.
In the afternoon of 22 July 2025, the Applicant received a phone call from Chris Nelson (Nelson), Wormall Site Supervisor. The Applicant said that Nelson expressed that he wanted to apologise about the situation on his site. The Applicant said he informed Nelson that he had no idea what was going on and asked what had happened on the morning of 18 July 2025.
The Applicant said that Nelson explained that P Bennett had arrived at the site at 6:30AM and informed him that there had been an accusation that the Applicant had made girls on the site feel uncomfortable. According to the Applicant, Nelson informed him that P Bennett had directed that the Applicant was not allowed on site. Nelson is said to have further informed the Applicant that he investigated the situation himself and had spoken individually with all the girls on site – noting that the girls he had spoken to were surprised by the allegation – and expressed that the Applicant had never spoken to them, sent messages or done anything inappropriate. The Applicant stated that Nelson expressed to him he was appalled by the manner in which the Applicant had been treated. The Applicant said he suggested to Nelson that the only person who could have made the accusation was Ronan Harvey (Harvey), the drain layer, who the Applicant worked with. The Applicant notes that Wilson was present through the duration of the discussion with Nelson.
The Applicant, having missed some phone calls from C Bennett, proceeded to return the calls, informing C Bennett that he was not doing well given everything that had happened over the past few days. The Applicant said that C Bennett told him there was work available on site the next day and provided reassurance that the Respondent was happy with his work and there were no issues concerning his performance. However, the Applicant said that he advised C Bennett that he had just spoken to Nelson and had surmised from that discussion that the situation may have originated from Harvey. The Applicant further noted that C Bennett stated that the investigation had been completed and that the girls involved on site had been issued with warnings.
Regarding the latter point of the discussion with C Bennett, the Applicant stated that he thought to himself that the Respondent was conducting the investigation therefore the Respondent could not issue warnings to the women, as they worked for the Respondent.
The Applicant said he considered that C Bennett’s account regarding the outcome of the investigation differed significantly to the version conveyed by Nelson. The Applicant said that he informed C Bennett that he did not think it was safe for him to return to site and that he could be setting himself up for failure. The Applicant stated that C Bennett responded, ‘[W]ell, we kinda need to know, Hayden,’ and the Applicant said to C Bennett that he would talk to P Bennett.
The Applicant gave evidence that he spoke to P Bennett later in the day on 22 July and that P Bennett asked him whether he was ready to return to work tomorrow. The Applicant said that he informed P Bennett that his understanding was that the girls from Wormall had nothing to do with the accusation and that it appeared to have originated from Harvey. The Applicant stated that P Bennett confirmed this was the case, clarifying that Harvey knew the policies and procedures and he was just following those processes. The Applicant said that when he asked P Bennett what would happen to Harvey for making a false accusation, P Bennett said that Harvey was just following the company’s policies and procedures, everyone liked the Applicant – including Harvey.
The Applicant noted that he informed P Bennett that he did not think it was safe for Harvey and him to work together after the false accusations, and in response, P Bennett replied, ‘that’s all I’ve got for you, I’ll pay for the three days when you were stood down, but I need you on site tomorrow as we need to complete our work.’ According to the Applicant and as recorded in his witness statement, the following dialogue ensued:
I said, “Peter, I am mentally not in a good place right now.”
“One minute I’m accused of something so serious, then I’m found innocent.”
I added, “I think I need to resign, I can’t work with Ronan after what he has done to me.”
Peter replied, “Well, if that’s how you feel”.
I said, “I’m 90 per cent sure that’s what I want to do, actually I don’t know as I don’t know what I am thinking right now.
I’m 90 per cent sure that’s what I want to do but I’ll send an official email, everything is happening too fast.”
Peter responded, “You’re a great operator, Hayden.”
I said, “I just need time to think what’s best for me.”[3]
The Applicant attended a medical appointment on 23 July 2025. On 24 July 2025, he sent a text note to P Bennett attaching the medical certificate (unfit for 23-25 July 2025 inclusive) and noting the earliest available appointment was the Wednesday (noting he had been unwell since Friday).
The Applicant stated that he received a response from P Bennett saying that as the Applicant had submitted his resignation on Tuesday, sick leave entitlement did not apply.
2.2 Wilson
At hearing, Wilson confirmed that she was not present for any of the discussions held between P Bennett and her husband.
Wilson gave evidence of having had two telephone discussions with C Bennett on 18 July 2025, in the latter discussion, C Bennett is said to have informed Wilson that the Respondent had no available place for the Applicant until the Respondent’s next job beginning on 4 August 2025, and that the Applicant would continue to be paid whilst stood down.
2.3 Respondent
Whilst the Respondent relied upon the evidence of C Bennett and P Bennett and the evidence of both has been considered, it is the evidence of P Bennett that is particularly pertinent to the determination of the whether the Applicant was dismissed.
2.3.1 P Bennett
P Bennett gave evidence that on 17 July 2025, he received a text message from Harvey, the site leading hand, advising that he had heard ‘some stuff today and quite frankly after what I’ve heard, not only is he not someone I’d want representing my company name, but I personally don’t really think he’s fitted to my crew or journey’.[4]
P Bennett stated that he immediately contacted Harvey to gain a better understanding of the issue and formed the view from that discussion that the issue was the potential harassment of female workers at the site – in the form of telling inappropriate jokes and behaving in a way to make female workers feel uneasy.
P Bennett said that he stood the Applicant down on the morning of 18 July 2025 pending the outcome of an investigation into the matter. P Bennett stated that he was able to complete the investigation having received feedback from the site supervisor, and it was concluded that the matter was resolved without any adverse finding against the Applicant. P Bennett said he decided to reinstate the Applicant into his position.
Having attempted to call the Applicant three times on 22 July 2025 to inform him of the results of the investigation and that he was cleared to return to work, P Bennett said the Applicant took his call on 23 July 2025. P Bennett noted that he explained to the Applicant that the investigation had been completed following discussions with the site supervisor and that the female workers and site supervisor were comfortable moving forward and did not want to make any complaint – the matter having been resolved. Whilst P Bennett’s statutory declaration referred to him having held discussions with the female workers, at hearing it was confirmed that he only spoke to the site supervisor.
Although P Bennett had advised the Applicant of the outcome of the investigation and that he could return to work, according to P Bennett, as recorded in his statutory declaration, the Applicant ‘informed me of his intention to resign from Benno.’ P Bennett stated that he informed the Applicant that he was disappointed with his decision and advised the Applicant that if he ever changed his mind, he would be welcome back at any time in the future.
On 24 July 2025, P Bennett received a medical certificate from the Applicant dated 23 July 2025, which stated that the Applicant was not fit for work between 23 July 2025 and 25 July 2025. The medical certificate was forwarded with a text message that stated:
Hi Peter. Here is a Doc Certificate. I always had an appointment booked for Wednesday which was the earliest I could get. I haven’t been right since Friday. I was put on the spot with the situation n finding of it all. Not so easy to be asked ‘U good for work tomorrow? Need to know by 5.00pm. Doctors recommendation as well as duty of care on how this has been handled.[5]
In response to the Applicant’s text message of 24 July 2025, P Bennett responded by text message:
You resigned on Tuesday so we cannot pay S/L for Wednesday Hayden… You have been paid 7.6 hour days for Monday and Tuesday mate as discussed.[6]
Consideration
The Applicant asserts that his primary position is that his employment was terminated at the initiative of the Respondent on 24 July 2025, when the Respondent declined to accept the Applicant’s medical certificate. In the alternative and in circumstances where the Commission is not persuaded by that argument, the Applicant contends that he was forced to resign because the Respondent’s conduct rendered continued employment untenable.
Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. That section is relevant for present purposes given the Federal Circuit Court[7] and Federal Court[8] have accepted that the definition of the word ‘dismissed’ in s 386(1) is equally relevant to the meaning of the term as used in s 365 of the Act. The word ‘dismissed’ as defined in ss 12 and 386 of the Act reads:
A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; however, those exceptions are not relevant to this case.
The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration.
The first element traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct, or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (‘Bupa’),[9] and in Lipa Pharmaceuticals Ltd v Jarouche where the Full Bench endorsed the principles established in Bupa in respect of s 386(1)(b) of the Act. [10] In Bupa it was said:
[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[11]
While a summary of the position under s 386(1) of the Act was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan considered the operation of s 386(1):
[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’ (references omitted)[12]
Therefore, the initial question is whether the act of the Respondent in not accepting the medical certificate and having informed the Applicant that he resigned on 23 July 2025, is the principal contributing factor, which resulted directly or consequentially in the termination of the Applicant’s employment.
At this juncture, it is relevant to note that the Applicant’s representative was adamant that whilst reliance was placed on s 386(1)(a) and (b), the Applicant’s argument was not that he had resigned in the heat of the moment. This is the case notwithstanding that the Applicant had noted in his text message to P Bennett on 24 July 2025 that he had been put on the spot in the circumstances when asked ‘U good for work tomorrow? Need to know by 5.00pm’.
At hearing, much was made of P Bennett having referred in his statutory declaration to ‘he (the Applicant) informed me of his intention to resign from Benno’.[13] C Bennett similarly stated that:
Both Peter Bennett and I then separately made contact with the Applicant on the afternoon of 22 July 2025, seeking confirmation that he would be back at work and on-site the following day, however the Applicant informed both Peter Bennett and myself of his intention to resign from the company.[14]
There is a discrepancy in the evidence of P Bennett and C Bennett, to the extent that C Bennett purports that P Bennett had a telephone discussion with the Applicant on 22 July 2025 and P Bennett notes that it was on 23 July 2025. For his part, the Applicant recalls speaking to P Bennett on the phone on 22 July 2025. At hearing both C Bennett and P Bennett expressed that whilst they had referred in their statutory declarations to the Applicant expressing an ‘intention’ to resign, it was their evidence that the Applicant had, in the telephone calls to them individually, expressed he had resigned.
The starting point is the consideration of whether the Applicant’s communication to P Bennett and C Bennett over the course of 22 July 2025 and 23 July 2025 conveyed a real and unequivocal resignation. Such communication cannot be viewed in isolation. The surrounding circumstances known to the parties factor into the decision of what a reasonable person in the position of the parties would have understood was the objective position of the parties on and from 22 July 2025.
The approach to be adopted when considering the effect of a resignation was explained at length in Koutalis v Pollett (‘Koutalis’),[15] a judgment of the Federal Court, which was followed by the Full Bench of this Commission in Canberra Urology Pty Ltd v Lancaster.[16]
In Koutalis, at issue was whether a Mr Pollett resigned or was constructively dismissed.
In relation to the former issue, his Honour said:
The question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:
This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22]].
In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee’s employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:
In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.[17]
On balance, I find that the Applicant conveyed to P Bennett in the telephone discussion on 22 July 2025 (or 23 July 2025) that he thought that he needed to resign and that he could not work with Harvey after what had occurred. The Applicant’s communication was, however, equivocal in my view – such that he ‘thought he needed to resign’. It was provided against a backdrop of having been subject to a workplace investigation for alleged conduct of making women on site uncomfortable and was given in a context of having conveyed to P Bennett that he could not work with Harvey after what had occurred. In addition, the Respondent had imposed a temporal deadline, having informed the Applicant that he needed to advise whether he would be returning to the site the next day (which, it would appear, would require him to work with Harvey).
Regard is to be had to the conduct of the Applicant after conveying to P Bennett that he thought he needed to resign. The Applicant provided a medical certificate on 24 July 2025 for the period of 23 July 2025 to 25 July 2025, forwarded to P Bennett via a text message that explained that the Applicant had been put on the spot with the situation.
It is established that there may exist ‘special circumstances’ which render an apparent indication of resignation on the part of the employee ineffective unless the employer obtains confirmation of the employee’s intention to resign after a reasonable period.
In Bupa[18] the Full Bench gave detailed consideration to the judgment of the Industrial Relations Court of Australia in Minato v Palmer Corporation Ltd (‘Minato’).[19] In Minato, the employer purported to accept a resignation of the employee even though it knew that when the employee uttered the words taken as a resignation that she was under personal pressure, not in a ‘sensible state’, and did not intend to resign.[20] In those circumstances the acceptance of the resignation was characterised as constituting a termination of employment at the initiative of the employer.[21] The Court in Minato referred to Sovereign House Security Services Ltd v Savage, observing that it set out the legal position in respect of ascertaining whether there was a real resignation. [22]
Having considered and weighed the evidence before me, I find that the Applicant informed P Bennett on 22 July 2025 that he thought he needed to resign but did so in the ‘special circumstances’ as contemplated in Minato. It follows that it was incumbent upon the Respondent to not simply treat the ostensible resignation as terminating the employment relationship but to clarify with the Applicant after a reasonable time that the Applicant genuinely intended to resign. It follows that I am satisfied that the Applicant’s employment was terminated at the initiative of the Respondent as contemplated by s 386(1)(a) of the Act. In light of this conclusion, it has proved unnecessary to provide detailed consideration of s 386(1)(b) of the Act.
Conclusion and next steps
The Respondent’s jurisdictional objection that the Commission is absent jurisdiction to deal with the application, is dismissed.
It is worth outlining s 370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of the Applicant’s application:
A person who is entitled to apply under s 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
The precursor to the issuing of the required certificate under s 368(3)(a) is that the Commission must deal with the dispute by conducting a conference[23] and reach a level of satisfaction ‘that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful’.[24] Hence for present purposes and as a result of my determination, this matter will now be listed for conference in order to explore the possibility of resolution. A notice of listing will be issued shortly.
Finally, while I have determined the Applicant was dismissed by the Respondent and is therefore entitled to apply under s 365 of the Act for the Commission to deal with his dismissal dispute, it should be noted that the Full Court in Milford made observations of the following nature regarding s 370 of the Act and the making of a general protections court application:
a) the Act establishes multiple alternate pathways for an applicant and prospective litigants;
b) s 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person’s entitlement to make an application to it, this may not be conclusive; and
c) this is because a Court may ultimately decline to recognise an ‘application’ or resulting certificate granted by the Commission as valid, if called upon by a Respondent to determine a subsequent objection to the competency of a general protections court application under s 370 of the Act. [25]
DEPUTY PRESIDENT
Appearances:
P Mullally for the Applicant
R Perry for the Respondent
Hearing details:
2025.
By video using Microsoft Teams:
2 October.
[1] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 603 [54], (‘Milford’); special leave to appeal declined in Coles Supply Chain Pty Ltd v Milford [2021] HCASL 37.
[2] Ibid 602 [51].
[3] Witness Statement of Hayden Wilson dated 14 August 2025, [161]–[168]; Digital Hearing Book (DHB) 35, [161]-[168].
[4] Statutory Declaration of Peter Bennett dated 16 September 2025 (P Bennett Declaration) [4]; DHB (n 3) 126 [4], 128–9 [PB-1].
[5] P Bennett Declaration (n 4) [11]; DHB (n 3) 126 [11], 132–3 [PB-3].
[6] P Bennett Declaration (n 4) [12]; DHB (n 3) 126 [12]; 134–5 [PB-4].
[7] Morris v Allied Express Transport Pty Ltd [2016] FCCA 1589, [117].
[8] Milford (n 1) 603 [54].
[9] [2017] FWCFB 3941 (‘Bupa’).
[10] [2023] FWCFB 101.
[11] Bupa (n 9) [47].
[12] [2018] FWCFB 5 [10]–[11].
[13] P Bennett Declaration (n 4) [10]; DHB 126 [10]; Statutory Declaration of Craig Benett dated 16 September 2025 (C Bennett Declaration) [10]; DHB 93 [10].
[14] C Bennett Declaration (n 13) [8]; DHB 93 [8], 120–23 [CB-4].
[15] (2015) 235 FCR 370 (‘Koutalis’).
[16] [2021] FWCFB 1704.
[17] Koutalis (n 15) 379–80 [43]–[44] (emphasis omitted).
[18] [2017] FWCFB 3941, [37]–[45].
[19] (1995) 63 IR 357 (‘Minato’).
[20] Ibid 362–3.
[21] Ibid 363.
[22] [1989] IRLR 115, cited in Minato (n 19) 361–2.
[23] Fair Work Act 2009 (Cth) s 368(1)–(2).
[24] Ibid s 368(3).
[25] Milford (n 1) 607 [74]–[75].
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